OP-ED: The Lawlessness of the Enforce the Law Act

Not being mush of a masochist, I don't usually read emails from the Democratic Whip in Congress, but I opened one Tuesday night and was mildly excited to read that the U.S. House of Representatives would spend Wednesday debating the "ENFORCE the Law Act of 2014." Wow, I thought, which law will they pick?

Will it be the Humphrey-Hawkins Full Employment Act? Would I, moments from now, be phoning a bunch of people to tell them jobs are on the way? Or ... wait a minute! Oh my god, would large corporations be paying taxes now? Or will it be the Kellogg-Briand Pact or maybe the U.N. Charter -- Are we about to announce to the world that the wars are over? Perhaps, I thought, it's going to be the anti-torture statute -- hot damn! I wonder when the tickets for the CIA trials go on sale and how much a front row seat will cost. Or are bankers going to be subject to laws? Or maybe, just maybe, what they plan to enforce is the First Amendment or maybe the Fourth Amendment, or -- hell -- any of the amendments. Can you imagine?

My excitement wore off faster than a Congressman hits his knees before a corporate lobbyist. It turned out that this bill is part of a trend I've been watching and writing about for years. Unwilling to impeach lawless presidents, members of Congress from both parties have been pushing for years the idea that Congress should sue criminal presidents in civil court. The Democrats pushed this more when Bush was in the White House, and the Republicans more now. The Enforce the Law Act is a Republican bill, but a bunch of Democratic amendments to it will be the subject of debate.

I started paying attention to this cockamamie idea of Congress suing the president in court around August 2008 when a group of Congressman Henry Waxman's constituents met with him and urged him to make use of inherent contempt. They were then obliged to explain to him what inherent contempt is (as I'll explain it a few paragraphs below). The 110th Congress had probably seen more requests, subpoenas, and contempt citations ignored than all previous Congresses combined, and Waxman had certainly endured more such insult than all other committee chairs combined. He single-handedly destroyed whole forests with the flood of letters and requests and subpoenas he sent down Pennsylvania Avenue, and yet he was apparently unaware of a procedure commonly used by Congress through most of this nation's history that would actually compel people to show up and answer questions and produce documents.

In 2008 and 2009 a vague sort of awareness of inherent contempt crept into the minds of certain committee members and party leaders, almost entirely as a result of thousands of citizens demanding that they immediately make use of it. Quasi-grass-roots groups afraid to demand impeachment took up the cry for inherent contempt, and some pro-impeachment groups advanced the cause as well, even though their eyes were set on a bigger and better prize.

Ron Suskind, who's just given us a moving story about autism, in 2008 gave us a book reporting that Iraq's intelligence chief had informed the United States prior to the 2003 invasion of Iraq that Iraq possessed no weapons of mass destruction. George Tenet and the White House admitted the truth of this, but absurdly dismissed it as unimportant. Congress lets such outrages pass at its own peril.

Congresswoman Zoe Lofgren wrote the following dismissive letter to her constituents who were demanding inherent contempt:

"Thank you for contacting me about Karl Rove's failure to appear before the Judiciary Committee. I appreciate that you took the time to share your thoughts with me. The Judiciary Committee is taking Karl Rove's failure to testify very seriously, and we are currently considering all options - including contempt proceedings -- to compel him to answer important questions regarding the firing of several U.S. attorneys. Some have suggested that Congress implement 'inherent contempt' as if that is a viable option. The jail cell in the basement of the Capitol doesn't exist and the Sergeant at Arms is an over 60 year old executive. Congress is not a police force, and we will likely need to continue to utilize the courts and system of justice to pursue these matters. Again, thanks for being in touch. Please do not hesitate to let me know if I may ever be of assistance to you or your family."

Congresswoman Lofgren was very badly informed or chose to pretend to be. The age of the Sergeant at Arms is not a decisive factor in the question of whether the Congress will engage in what for most of its history was understood as "inherent self-protection". There is a Sergeant at Arms for the House and one for the Senate, there are deputies, and there is an entire Capitol police force. In one of the earliest uses of "inherent contempt" a prisoner of the United States Congress argued that a warrant used to arrest him was invalid because it had been addressed to the Sergeant at Arms and had been enforced by the Deputy Sergeant at Arms. The U.S. Supreme Court ruled that the warrant was still valid; and that practice was subsequently followed for many decades. The Sergeant at Arms is not on his own, but is permitted and required to employ subordinates as needed. In 1877 a Deputy Sergeant at Arms was instructed to accompany a Congressional prisoner to New Orleans to procure telegrams he had hitherto refused to produce when subpoenaed, and to accompany another prisoner to New York to be seen by his physicians. In addition, a Sergeant at Arms incapable of performing his duties can be reassigned. With labor unions banned on Capitol Hill, there shouldn't be any legal difficulties in immediately rearranging a few employees of the government.

When inherent contempt began to be discussed in 2007, having not been heard of in some 75 years, the Politico (never a publication overly careful with facts) reported that the jail had been razed in 1929. Congresswoman Lofgren, on the other hand, maintained that "the jail cell in the basement of the Capitol" doesn't exist. She seems to take no position on whether such a thing ever did exist. Both of these replies wildly miss the mark. The House or the Senate or, in fact, any committee thereof, has the power, according to tradition and to rulings of the U.S. Supreme Court, to instruct the Sergeant at Arms of the House or Senate to imprison anyone being charged with contempt of Congress or being thereby punished for contempt of Congress. The difficulty of finding a place to imprison them has been easily solved in a variety of ways and could be again quite quickly. In fact the Capitol Police have plenty of spaces for holding prisoners. Trust me, I've been in them.

The reference to 1929 may be a reference to the building that stood on the current site of the Supreme Court building, construction of which began that year. The Old Capitol Prison was not the only thing housed in that building when it was there, was not among the initial uses for that building, and had long since ceased to be used by Congress when the building was razed. During the latter part of the 19th Century and the early part of the 20th, the common jail of the District of Columbia was routinely used by the Sergeants at Arms of the House and Senate. While the jail did not belong to Congress, an arrangement was made to use it, housing the occasional "contumacious witness" in the same building with the general DC prison population. The District Jail is described in this 1897 New York Times article. This 1934 article from Time Magazine discusses the Senate's use of the District Jail to punish contempt in both 1860 and 1934.

In 1872 a Congressional committee discussed the problem of the DC jail not being controlled by Congress, but apparently concluded that the Sergeant at Arms could keep control of a prisoner in that jail. In other instances, including that same case, a prisoner of Congress was summoned to appear by a court, and Congress instructed the Sergeant at Arms to transport the prisoner to the court to explain the situation but not to release the prisoner from his control.

Congress has not always made use of outside jails. In 1868 this measure was approved: "Resolved, That Rooms A and B, opposite the room of the solicitor of the Court of Claims, in the Capitol, be, and are hereby, assigned as guardroom and office of the Capitol police and are for that purpose placed under charge of the Sergeant-at-arms of the House with power to fit the same up for purpose specified.... Resolved, That said Wooley, for his repeated contempt of the authority of the House, be kept until otherwise ordered by the House in close confinement in the guardroom of the Capitol police by the Sergeant-at-Arms until said Wooley shall fully answer the questions above recited, and all questions put to him by said committee in relation to the subject of the investigations with which the committee is charged, and that meanwhile no person shall communicate with said Wooley, in writing or verbally, except upon the order of the Speaker."

The U.S. Capitol and the House and Senate office buildings are full of rooms that could easily be transformed into guard rooms, and are in fact almost certainly full of guard rooms already. The room where we held the Downing Street Minutes hearing in June of 2005 would work fine with very few modifications. And -- I'm sure this will surprise you -- DC is chock full of jails, several of them quite close to the Capitol. In fact, the Capitol Police make extensive and frequent use of them under an ongoing understanding with the custodians of the jails. The Capitol Police also hold people, at least temporarily, in a building very near the Senate office buildings.

Reviewing the early history of Congressional contempt reveals a mixture of offenses, including refusing to answer questions (on various topics), refusing to produce documents, failing to appear, etc., but also libeling Congress, assaulting a Congress member, beating a congress member with a cane, even Congress members themselves beating up a senator, and the case of a drunken citizen applauding inappropriately. While use of police force has disappeared as a response to recalcitrant witnesses, it is still routinely used for people who applaud inappropriately. When about 50 of us held a sit-in in Chairman John Conyers' office in 2007 to urge impeachment, he had us taken to a nearby jail by the Capitol Police. The age of the Sergeant at Arms didn't seem to get in the way. When Cindy Sheehan was arrested for wearing an unacceptable T-shirt to a "State of the Union" speech, the Capitol Police sent us and the media on a wild goose chase to several different jails that they use before arriving at the one from which they actually released her.

But if use of the police has vanished since 1934 as a tool for enforcement of Congressional contempt, then what did Congresswoman Lofgren mean by suggesting that her committee was contemplating "contempt proceedings"? Well, she meant that -- in fulfillment of the popular "definition" of insanity -- Congress would consider doing with Karl Rove what it had long been doing with Harriet Miers and Josh Bolten, that is: waiting for the executive branch of our government to go through some sort of magical conversion and begin prosecuting its own most loyal criminals.

In the early years of this country inherent contempt was not distinguished as "inherent". It was simply called contempt. But it was enforced exclusively by Congress, just as contempt of a court was enforced by a court, just as contempt of a state legislature or an earlier colonial legislature or the British Parliament was enforced by the very same body. While the Constitution did not mention contempt, it was the consensus of Congress, later supported by multiple U.S. Supreme Court rulings, that Congress had the inherent right to this form of "self-protection". This was understood most often as protection from disruptions and assaults, but also as protection from insult and from the erosion of Congressional power through the refusal to comply with requests or subpoenas. Interestingly, the record shows that a citation of contempt by Congress, or rather a warrant to arrest someone charged with contempt in order to put him or her on trial, does not have to be preceded by a subpoena.

Common Cause in 2008 advocated inherent contempt with this statement: "Under the inherent contempt power, the House Sergeant-at-Arms has the authority to take Karl Rove into custody and bring him to the House where his contempt case can be tried, presumably, by a standing or select committee. If he is found by the House to be in Contempt of Congress, he can be imprisoned for an amount of time determined by the House (not to exceed the term of the 110th Congress which ends the beginning of January 2009) or until he agrees to testify. The Supreme Court has recognized the power of the House to enforce its own subpoenas through the inherent contempt provision, stating that without it, Congress 'would be exposed to every indignity and interruption that rudeness, caprice or even conspiracy may mediate against it.' Before Congress asked the Justice Department to try contempt cases on its behalf, the inherent contempt power was used more than 85 times between 1795 and 1934, mostly to compel testimony and documents."

Even the Washington Post agreed: "Both chambers also have an 'inherent contempt' power, allowing either body to hold its own trials and even jail those found in defiance of Congress. Although widely used during the 19th century, the power has not been invoked since 1934 and Democratic lawmakers have not displayed an appetite for reviving the practice."

While the House must release all prisoners at the end of each two-year Congress (and has traditionally done so), the Senate need not and can hold them into the next Congress.

It has been solidly established that inherent contempt resides in a full house or a committee.

So, what is statutory contempt? Well, in 1857 Congress passed a law criminalizing contempt of Congress (and the maximum jail time is 12 months). It did so in large part precisely because of the need to free prisoners at the end of each Congress, but also because of the time-consuming nature of putting people on trial for contempt, something that was commonly done by committee, with the accused often permitted legal counsel and witnesses.

Inherent contempt is a power that resides in what the U.S. Constitution created to be the most powerful branch of the government. It cannot be overruled in court, and it cannot be vetoed or pardoned. It can also not be endlessly delayed by court appeals, which is where the House's contempt citations for Miers and Bolten went. Delaying a court decision until the next Congress makes the possibility of enforcement unlikely. And if a decision were reached, it would fall to Congress to use inherent contempt to enforce it anyway.

This report describes the first use of Congressional contempt in 1795. Bizarrely, to the modern eye, the matter arose when a number of Congress Members protested that someone had attempted to bribe them. While today's members of Congress will hardly deign to speak with anyone who has not properly bribed them through our "campaign financing" system, at that time this action was considered an insult to the dignity of Congress.

The power of Congress that I am proposing it use or lose is not the sort of power the White House has claimed to randomly kidnap, detain, disappear, torture, and murder. Everything Congress does in this regard must be open and public. It must not randomly arrest someone for an offense unrelated to contempt of Congress - or for no offense at all. It must allow communication with legal counsel and family. It must treat everyone humanely. It must not abuse its power, and such abuses must be checked by the judicial branch. The purpose of Congress detaining prisoners is to compel them to produce information believed to be of potentially vital importance to the governance of our nation.

The CRS report provides very little background on this, but a great deal can easily be had. Simply look up Hinds Precedents, especially chapters 53 and 51, and Cannon's Precedents, especially chapters 184-185. You'll find numerous detailed cases of Congress asserting its power, arresting people, holding them until they agreed to answer questions, and then releasing them. Some of these people did not refuse to appear, but simply failed to satisfactorily answer questions.

In 1857, a New York Times reporter refused to say which members of Congress had asked him to get them bribes (protecting his "sources" just as various Judith Millers today protect the people who feed them proven lies that costs thousands of lives), so Congress locked him up until he answered and then banned him from Congress. Imagine trying that with ABC News executives until they revealed who fed them the anthrax-is-from-Iraq lies.

In 1924 an oil executive appeared but refused to answer certain questions, so the Senate held -- literally held -- him in contempt. Senator Thomas Walsh of Montana argued that this question of contempt was of the gravest importance, and that it involved "the very life of the effective existence of the House of Representatives of the United States and of the Senate of the United States." The matter was taken to court, and the witness fined and imprisoned. Imagine locking up the attendees of Cheney's secret energy task force meetings until they explained how our supposedly democratic government arrived at some of its worst recent decisions.

Various cases of contempt in the past have involved perceived insults to Congress and have been resolved by a simple apology. This may strike people today as humorous and vain. I find less fault in it than I do in today's Congress, which appears completely incapable of feeling either shame or self-respect. If impeachment is off the table, inherent contempt is in the past, contempt citations are delayed until moot, subpoenas are laughed at, FOIA requests are tossed in the trash, and other appeals to the executive branch to please allow itself to be overseen are simply ignored, then I must agree with Senator Walsh that we are witnessing the very death of the House and Senate. The capacity to hold someone in contempt, on its own would be a sign of life in what otherwise appears a motionless corpse.

ACT II

When a president blatantly violates important laws or otherwise abuses his or her power, Congress is supposed to impeach. Afraid to do that, it has moved in the direction of "investigating" the abuses. When its subpoenas are ignored, it uses contempt. But it's transformed "contempt" into something in the hands of the Justice Department that operates under the thumb of the president. Failing in that approach, Congress appears to be moving now in the direction of not investigating at all, but not impeaching either. Instead it will take the presidential crime itself -- rather than a refusal to answer Congressional inquiries about it -- to court. Anything to pass the buck to some other branch of government!

Imagine Congress letting the CIA off the hook for murder and torture, getting outraged at the CIA's spying on Congressional dithering, and then taking the CIA to court, where the president will tell the court that revealing CIA crimes would endanger us all by subjecting us to magical forces of National Security Threats. And then imagine Congressional candidates campaigning on how brave they were to take the CIA to court. Or don't imagine it. Just wait for it -- or something like it; the EPA is more likely than the CIA. Here's the bill. Read it and weep.

H.R.4138 -- ENFORCE the Law Act of 2014 (Reported in House - RH)

HR 4138 RH

Union Calendar No. 281

113th CONGRESS

2d Session

H. R. 4138

[Report No. 113-377]

To protect the separation of powers in the Constitution of the United States by ensuring that the President takes care that the laws be faithfully executed, and for other purposes.

Committed to the Committee of the Whole House on the State of the Union and ordered to be printed

A BILL

To protect the separation of powers in the Constitution of the United States by ensuring that the President takes care that the laws be faithfully executed, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law Act of 2014' or the `ENFORCE the Law Act of 2014'.

SEC. 2. AUTHORIZATION TO BRING CIVIL ACTION FOR VIOLATION OF THE TAKE CARE CLAUSE.

(a) In General- Upon the adoption of a resolution of a House of Congress declaring that the President, the head of any department or agency of the United States, or any other officer or employee of the United States has established or implemented a formal or informal policy, practice, or procedure to refrain from enforcing, applying, following, or administering any provision of a Federal statute, rule, regulation, program, policy, or other law in violation of the requirement that the President take care that the laws be faithfully executed under article II, section 3, clause 5, of the Constitution of the United States, that House is authorized to bring a civil action in accordance with subsection (c), and to seek relief pursuant to sections 2201 and 2202 of title 28, United States Code. A civil action brought pursuant to this subsection may be brought by a single House or both Houses of Congress jointly, if both Houses have adopted such a resolution.

(b) Resolution Described- For the purposes of subsection (a), the term `resolution' means only a resolution--

(1) the title of which is as follows: `Relating to the application of article II, section 3, clause 5, of the Constitution of the United States.';

(2) which does not have a preamble; and

(3) the matter after the resolving clause which is as follows: `That XXXXXXX has failed to meet the requirement of article II, section 3, clause 5, of the Constitution of the United States to take care that a law be faithfully executed, with respect to XXXXXXXXX.' (the blank spaces being appropriately filled in with the President or the person on behalf of the President, and the administrative action in question described in subsection (a), respectively).

(c) Special Rules- If the House of Representatives or the Senate brings a civil action pursuant to subsection (a), the following rules shall apply:

(1) The action shall be filed in a United States district court of competent jurisdiction and shall be heard by a 3-judge court convened pursuant to section 2284 of title 28, United States Code.

(2) A final decision in the action shall be reviewable only by appeal directly to the Supreme Court of the United States. Such appeal shall be taken by the filing of a notice of appeal within 10 days, and the filing of a jurisdictional statement within 30 days, of the entry of the final decision.

(3) It shall be the duty of the United States district courts and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any such action and appeal.

Union Calendar No. 281

113th CONGRESS

2d Session

H. R. 4138

[Report No. 113-377]

A BILL

To protect the separation of powers in the Constitution of the United States by ensuring that the President takes care that the laws be faithfully executed, and for other purposes.

March 7, 2014

Committed to the Committee of the Whole House on the State of the Union and ordered to be printed